This opinion is subject to revision before final

publication in the Pacific Reporter

2014 UT 46

IN THE

SUPREME COURT OF THE STATE OF UTAH

MERRILL COOK, PAUL BRUGGER, and MARA BRENENSTALL,

Appellants,

v.

LT. GOVERNOR GREG BELL and SALT LAKE COUNTY CLERK’S OFFICE,

Appellees.

No. 20120748

Filed October 24, 2014

Third District, Salt Lake

The Honorable Randall N. Skanchy

No. 120904608

Attorneys:

Merrill Cook, Paul Brugger, Mara Brenenstall,

appellants pro se

Sean D. Reyes, Att’y Gen., Thom D. Roberts,

Asst. Att’y Gen., Melanie F. Mitchell, Salt Lake City,

for appellees

JUSTICE DURHAM authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

and JUSTICE PARRISH concur.

JUSTICE LEE filed an opinion concurring in the judgment.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 During the 2011 legislative session, the Utah legislature

passed Senate Bill 165 (S.B. 165), altering the requirements for

placing an initiative on the ballot. After an unsuccessful attempt to

place a local initiative on the ballot, the sponsors of the initiative

challenged several provisions of S.B. 165, contending the

amendments violate the right to initiative and uniform operation of

laws provisions of the Utah Constitution and the Free Speech Clause

of the federal Constitution. The district court found that the

amendments did not violate any of these constitutional provisions.

We affirm.
COOK v. BELL

Opinion of the Court

2

BACKGROUND

¶2 Appellants Mara Brenenstall, Paul Brugger, and Merrill

Cook (collectively, initiative proponents) are sponsors of an

initiative petition entitled “Lawful Employment Ordinance,” which

would require Salt Lake County employers to comply with an “Everify” requirement aimed at preserving jobs in Utah for legal

residents. After unsuccessful attempts by the initiative proponents

to secure the necessary support from the legislature, he sought to

place the ordinance on the 2012 general election ballot in Salt Lake

County. The initiative proponents filed an initiative application

with the Salt Lake County Clerk’s Office in June 2011, and used

volunteers to collect signatures through April 2012. The county

clerk, however, determined that there were not enough signatures

to place the Lawful Employment Ordinance on the 2012 general

election ballot.

¶3 Several months before the initiative proponents filed the

application for petition, the state legislature modified the

requirements for placing a local initiative on the ballot. Alleging that

these amendments resulted in his inability to get enough signatures

to place the Lawful Employment Ordinance on the 2012 ballot, the

initiative proponents filed a lawsuit against Lieutenant Governor

Greg Bell and Salt Lake County Clerk Sherrie Swenson (collectively,

the State), seeking a declaration that two of these amended

provisions were unconstitutional.

¶4 The initiative proponents’ first challenge was to the

number of signatures required to place the initiative on the ballot.

Utah Code section 20A-7-501(1)(a) was modified to require initiative

sponsors to gather “signatures equal to . . . 10% of all the votes cast

in the county, city, or town for all candidates for President of the

United States at the last election at which a President of the United

States was elected,” rather than an equal percentage of votes cast in

Utah’s most recent gubernatorial election as previous iterations of

the law required. 2011 Utah Laws 215. The initiative proponents

claimed that the 2011 amendment unconstitutionally increased the

number of required signatures in Salt Lake County from

approximately twenty-three thousand to approximately thirty-nine

thousand.

¶5 Second, the initiative proponents challenged the amended

provision requiring initiative sponsors to consign the completed

initiative packet and sufficient signatures to the county clerk’s office

by “the sooner of . . . (A) 316 days after the day on which the

application is filed; or (B) the April 15 immediately before the next
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Opinion of the Court

3

regular general election immediately after the application is filed.”

UTAH CODE § 20A-7-506(1)(a). Prior to the 2011 amendment,

proponents of statewide initiatives had one year after filing an

application to gather the required signatures, while proponents of

local initiatives had an unlimited amount of time to gather

signatures so long as they were submitted to the county clerk’s office

by April 15 of the year in which the initiative was to go on the ballot.

UTAH CODE §§ 20A-7-202(4)(a), 20A-7-506(1) (2010). The 2011

amendments standardized these diverse timetables, requiring both

statewide and local initiative sponsors to gather the required

number of signatures by the sooner of (a) 316 days after filing an

application or (b) the April 15 immediately before the next regular

general election. UTAH CODE §§ 20A-7-206(1)(a), 20A-7-506(1)(a).

¶6 On cross-motions for summary judgment, the district court

denied the initiative proponents’ declaratory relief claims. The

initiative proponents appealed, challenging the constitutionality of

the 2011 amendments to the local initiative requirements.

STANDARD OF REVIEW

¶7 “Because the issue of constitutionality presents a question

of law, we review the trial court’s ruling for correctness and accord

it no particular deference.” Ryan v. Gold Cross Servs., Inc., 903 P.2d

423, 424 (Utah 1995) (internal quotation marks omitted).

ANALYSIS

¶8 The initiative proponents assert that the 2011 amendments

to the local initiative requirements are unconstitutional on three

separate grounds: first, the challenged provisions violate the

fundamental right to initiative granted under article VI, section 1 of

the Utah Constitution; second, the provisions violate the uniform

operation of laws under article I, section 24 of the Utah Constitution;

and finally, the provisions unconstitutionally infringe upon the right

to free speech under the First Amendment to the U.S. Constitution.

We disagree with these assertions.

I. THE RIGHT TO INITIATIVE

¶9 Article VI, section 1 of the Utah Constitution establishes the

right of voters to legislate via local initiatives:

The legal voters of any county, city, or town, in the

numbers, under the conditions, in the manner, and

within the time provided by statute, may . . . initiate any

desired legislation and cause it to be submitted to the

people of the county, city, or town for adoption upon a
COOK v. BELL

Opinion of the Court

4

majority vote of those voting on the legislation, as

provided by statute . . . .

UTAH CONST. art. VI, § 1(2)(b). While we recognize that the “reserved

right and power of initiative is a fundamental right,” Gallivan v.

Walker, 2002 UT 89, ¶ 24, 54 P.3d 1069, it “is not unfettered, but

comes with a built-in limitation,” Utah Safe to Learn-Safe to Worship

Coal., Inc. v. State, 2004 UT 32, ¶ 28, 94 P.3d 217. The constitutional

provision establishing the right to initiative also qualifies that right

by granting the legislature power to regulate “the numbers, . . . the

conditions, . . . the manner, and . . . the time” by which initiatives

may be placed on the ballot. UTAH CONST. art. VI, § 1(2)(b).

¶10 Thus, although the legislature is precluded from passing

laws that “unduly burden or diminish the people’s right to initiate

legislation,” Gallivan, 2002 UT 89, ¶ 28, “[t]his does not mean . . . that

the legislature may never pass regulations that have the effect of

making it more difficult to enact legislation by initiative,” Safe to

Learn, 2004 UT 32, ¶ 29. Statutory regulations of the right to initiative

are unconstitutional only if they are unduly burdensome. Id. 34–5.

¶11 The initiative proponents point to the language in the

district court’s opinion that recognizes “there is a point at which the

ratcheting up of required signatures and ratcheting down of time in

which to gather those signatures reaches a point where few or no

citizen’s group could meet the criteria.” In connection with this

language, the initiative proponents argue for an interpretation of

“unduly burdensome” that triggers a constitutional violation

whenever a law has the effect of actually preventing a party from

reaching the ballot with a specific initiative. They further note that

while the lower court has found each provision of the 2011

amendments to be constitutional, individually permissible

restrictions can become unduly burdensome when considering their

combined effect.

¶12 As noted above, the right to initiative in Utah is a qualified

right, subject to legislative regulation. Thus, while residents of Utah

may not be statutorily deprived of the right to initiative, the

legislature does possess the power to define the boundaries

surrounding its practice, which may have the effect of rendering the

ballot-initiative process more difficult. However, increasingly

stringent requirements may, individually or in the aggregate, rise to

an unconstitutional level if they unduly burden the right of Utah’s

citizens to initiate legislation. See Gallivan, 2002 UT 89, ¶ 27. To avoid

this danger, courts weigh the burdens placed on initiative

proponents against the legislature’s purpose in enacting the
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Opinion of the Court

5

regulations to determine whether an enactment unduly burdens the

right to initiative. As we stated in Safe to Learn:

In making this determination, a court should assess

whether the enactment is reasonable, whether it has a

legitimate legislative purpose, and whether the

enactment reasonably tends to further that legislative

purpose. In evaluating the reasonableness of the

challenged enactment and its relation to the legislative

purpose, courts should weigh the extent to which the

right of initiative is burdened against the importance of

the legislative purpose.

2004 UT 32, ¶ 35.

A. Reasonableness

¶13 When considering the reasonableness of a statutory

provision, we assess both the type and the magnitude of the

restriction in burdening the right to initiative. The Utah Constitution

explicitly permits the legislature to impose four types of regulations

on the right to initiative, namely, regulations that determine “the

numbers, . . . the conditions, . . . the manner, and . . . the time”

whereby legislation may be initiated by direct vote of the people.

UTAH CONST. art. VI, § 1(2)(b). Reasonable regulations falling within

the above four categories have generally been upheld as

constitutional.

¶14 For example, a statute defining the number of signatures

required was upheld by this court where sponsors were required to

gather ten percent ofthe number of votes cast in twenty-six of Utah’s

senatorial districts in the most recent gubernatorial election. Safe to

Learn, 2004 UT 32, ¶ 43.

¶15 Similarly, provisions regulating the manner of obtaining

signatures have been upheld as reasonable where petition sponsors

were limited to utilizing state residents to collect signatures, Initiative

& Referendum Inst. v. Jaeger, 241 F.3d 614, 617 (8th Cir. 2001), where

sponsors were prohibited from paying circulators a commission for

each signature obtained, id. at 618, where circulators were required

to be of legal voting age, Am. Constitutional Law Found., Inc. v. Meyer,

120 F.3d 1092, 1101 (10th Cir. 1997), and where circulators were

required to sign affidavits of compliance prior to circulating, id. at

1106.

¶16 Statutory conditions found to permissibly regulate the right

to initiative include requiring a quantity of signatures from an

established number of elective regions within a state, Safe to Learn,
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Opinion of the Court

6

2004 UT 32, ¶ 43, establishing a process whereby initiative signers

may remove their name and support from the initiative, id. ¶¶ 44,

49, limiting each initiative to a single subject, PEST Comm. v. Miller,

626 F.3d 1097, 1107–08 (9th Cir. 2010), requiring a description of the

effect of the initiative to appear on the initiative, id., and requiring

the subject of the initiative to appear in its title, Campbell v. Buckley,

203 F.3d 738, 746–747 (10th Cir. 2000).

¶17 This court has upheld a statute providing a one-year

allotment of time within which signatures must be gathered, noting

that prior initiative sponsors have qualified for the ballot within six

weeks to five months. Safe to Learn, 2004 UT 32, ¶¶ 51–52.

¶18 Much of the jurisprudence in this area has proceeded on a

case-by-case categorical analysis of whether a specific type of

restriction is unduly burdensome. But any restriction may on its

own, or in connection with other requirements, rise to the level of

being an undue burden if legislative requirements vis-à-vis the

number, manner, condition, or time are unreasonably restrictive. In

contemplating the quantitative level at which restrictions cross the

threshold from constitutional regulation to an unconstitutional

abrogation of the fundamental right to initiative, courts consider the

qualitative net effect of all the relevant statutory restrictions.

Whereas in isolation a provision may not rise to the level of being

unduly burdensome, the combined effect of multiple, otherwise

permissible, provisions may cross that threshold.

¶19 This case presents a series of statutes that require local

initiative proponents to collect signatures equal to ten percent of the

votes cast in the most recent presidential election by April 15 of the

election year or within 316 days, whichever occurs first. These

provisions establish the number of signatures required and the time

frame within which they must be gathered, both of which are within

the enumerated restrictions the state legislature may impose upon

the right to initiative. UTAH CONST. art. VI, § 1(2)(b).

¶20 As to the numbers requirement of the amended local

initiative statute, it retained the ten-percent-of-votes-cast threshold

but changed the referenced office from the previous gubernatorial

election to the previous presidential election. In order to assess

whether the amended statute unreasonably increases the number of

signatures required, we therefore would need to evaluate historical

evidence of the number of votes cast for each of these offices in

previous elections. But the initiative proponents do not cite any

record evidence of the number of votes cast in prior elections, nor

have we uncovered such evidence from our independent review of
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Opinion of the Court

7

the record. In its ruling on the cross-motions for summary judgment,

the district court noted that the initiative proponents claimed that

the amended statute increased the number of signatures required

from approximately twenty-three thousand to approximately thirtynine thousand. Absent any record evidence, however, we cannot

evaluate this claim. Nor can we determine whether any variance in

the number of signatures required was entirely due to the fact that

Utah hadrecently held its first special gubernatorial election outside

of the presidential election cycle, which might have led to an

artificially low number of votes cast in the previous gubernatorial

race.

¶21 Without any evidence of the practical effect of the

amendment, we are left with only the language of the statute. And

on its face, we cannot say that requiring signatures equal to ten

percent of the votes cast in the previous presidential election rather

than ten percent of the votes cast in the prior gubernatorial election

amounts to a per se unreasonable restriction on the right to

initiative.

¶22 We next examine whether the shortened time requirement

imposed by the amended statute unreasonably burdens citizens

seeking to place an initiative on the ballot. Although the amended

provisions require circulators to collect the required signatures in

forty-nine fewer days than we found to be appropriate in Safe to

Learn, there is no evidence that the time restriction amounts to an

undue burden. The Tenth Circuit, in ruling on a restriction limiting

the duration of initiative petition drives to six months, held that

while “some measures might fare better under a longer or

indeterminate period, the current deadline [of six months] is not a

significant burden on the ability of organized proponents to place a

measure on the ballot.” Am. Constitutional Law Found., 120 F.3d at

1099. Further, there is no evidence that the initiative proponents’

failure to acquire sufficient signatures via an unsponsored and

volunteer-driven petition circulation signifies that no unsponsored

and volunteer-driven petition would be able to succeed. Rather, it is

possible that theLegalEmployment Ordinance simply did not enjoy

much popular support. Again, the record contains no evidence on

this subject.

¶23 The initiative proponents further argue that the statute has

the effect of forcing initiative circulators to gather most of their

signatures during the oppressive winter months, especially at the

end of the drive where the momentum should be the greatest.

However, a careful reading of the statute demonstrates that initiative
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Opinion of the Court

8

sponsors may select any 316-day period within the two years prior

to the April 15 preceding the election. See UTAH CODE § 20A-7-

506(1)(a). Thus, an initiative sponsor may file an application on

January 1, receive the approval and packets in February, and have

the warm weather of April through October to collect signatures and

gather momentum.

¶24 We hold, therefore, that the burdens imposed by the

amendments to Utah’s initiative process—either individually or in

the aggregate—are not unreasonable restrictions under article VI,

section 1 of the Utah Constitution.

B. Legitimate Legislative Purpose

¶25 We now consider whether an improper legislative purpose

in passing the 2011 amendments may void the challenged

provisions. Generally, “[t]he authority of the legislature . . . . is

limited . . . to the role of providing for the orderly and reasonable

use of the initiative power.” Sevier Power Co. v. Bd. of Sevier Cnty.

Comm’rs, 2008 UT 72, ¶ 10, 196 P.3d 583. Legitimate legislative

purposes include “deterring fraud, ensuring the efficiency of the

process, [and] ensuring a modicum of numerical support for an

initiative.” Gallivan, 2002 UT 89, ¶ 53. “The legislature may not,

however, impose discriminatory restrictions on the initiative right

. . . simply for the sake of making it harder to [place an initiative on

the ballot] and restricting the initiative power.” Id.

¶26 No showing of such an illegitimate legislative purpose has

been made here. As the State notes in its briefing, Utah had held a

special interim election to replace Governor Huntsman, who had

recently been appointed as United States Ambassador to China. The

State claims that as a result of this irregular occurrence, and under

the prior iteration of section 20A of the Utah Code, a significantly

reduced number of signatures would have been required in 2011 for

an initiative to reach the ballot than in prior years. It is reasonable to

conclude that the legislature, interested in providing for the orderly

and reasonable use of the initiative power, acted to maintain a

comparable standard of numerical support by which initiatives

might reach the ballot during this period. This is a legitimate

legislative purpose.

¶27 In weighing the reasonableness of the burdens placed upon

the initiative right against the legislative purpose for the restrictions,

we conclude that the challenged provisions are reasonable, both

individually and in the aggregate, and are supported by a legitimate

legislative purpose. These provisions reasonably serve to maintain

a consistent threshold of minimal support required before legislation
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Opinion of the Court

9

may be placed on the ballot via initiative, promoting an efficient and

orderly initiative process. We therefore hold that the challenged

provisions do not unduly burden the right to initiative.

II. UNIFORM OPERATION OF LAWS

¶28 The initiative proponents argue that legislation reducing

the number of days to gather signatures and (allegedly) increasing

the number of signatures required disadvantages volunteer citizen

groups. They assert that these regulations favor well-funded

initiative efforts, which can hire signature gatherers, over unfunded

initiatives, which rely exclusively on volunteer signature gatherers.

The initiative proponents contend this disparate impact violates the

uniform operation of laws provision of the Utah Constitution.

¶29 Article I, section 24 of the Utah Constitution guarantees

that “[a]ll laws of a general nature shall have uniform operation.”

UTAH CONST. art. I, § 24. Under this language, “a statutory provision

may be unconstitutional if it creates a classification that is

discriminatory; that is, if it creates a classification that treats the

members of the class or subclasses disparately.” Utah Safe to LearnSafe to Worship Coal., Inc. v. State, 2004 UT 32, ¶ 31, 94 P.3d 217

(internal quotation marks omitted). Further, under the Utah

Constitution, a statute may be held unconstitutional both on its face

and for any de facto disparate effects on similarly situated parties.

Lee v. Gaufin, 867 P.2d 572, 577 (Utah 1993) (“For a law to be

constitutional under [a]rticle I, section 24, it is not enough that it be

uniform on its face. What is critical is that the operation of the law be

uniform. A law does not operate uniformly if persons similarly

situated are not treated similarly . . . .” (internal quotation marks

omitted)).

¶30 Violations of the uniform operation of laws clause may

trigger varying degrees of scrutiny. Safe to Learn, 2004 UT 32, ¶ 31.

The level of scrutiny applied turns on whether “a legislative

enactment implicates a fundamental or critical right or creates

classifications which are considered impermissible or suspect in the

abstract.” Gallivan v. Walker, 2002 UT 89, ¶ 40, 54 P.3d 1069 (internal

quotation marks omitted). Where a statutory provision creates an

impermissible classification, heightened scrutiny is appropriate. See

id.

¶31 We decline to recognize the inability to employ paid

circulators as defining a constitutionally significant classification. In

Safe to Learn, appellants challenged a statute requiring all ballot

initiatives to receive ten percent of votes cast in the prior

gubernatorial election in twenty-six of Utah’s twenty-nine senatorial
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Opinion of the Court

10

districts within one year of filing an application. 2004 UT 32, ¶ 4.

Although the contested requirements necessitated an increased

amount of organization, labor, and money to gather signatures

across the entire state, we concluded that neither the senatorial

district requirement, nor the one-year requirement, created any

classifications, “but appl[ied] equally to all Utah citizens.” Id. ¶ 33.

A similar logic applies here. Although the strictures of the statutory

provisions may render the initiative process more accessible to those

with greater resources, they apply uniformly to all citizens and do

not violate article I, section 24 of the Utah Constitution.

III. FREEDOM OF SPEECH

¶32 The initiative proponents argue that the challenged

provisions violate their right to “core political expression” as

protected by the First Amendment’s guarantee of free speech. In

essence, the initiative proponents assert that Utah’s initiative

regulations improperly hinder their ability to express their political

message by means of a ballot initiative. We disagree.

¶33 Numerous cases adjudicated by this court and federal

courts have repeatedly distinguished between regulation of the

initiative process and discouraging or preventing speech regarding

the subject of the initiative. See, e.g., Utah Safe to Learn-Safe to Worship

Coal., Inc. v. State, 2004 UT 32, ¶¶ 56–57, 94 P.3d 217 (distinguishing

statutes that violate the First Amendment by limiting speech from

statutes that constitutionally limit the success of initiative petitions

via procedural restrictions); Initiative & Referendum Inst. v. Walker,

450 F.3d 1082, 1099 (10th Cir. 2006) (“[T]he First Amendment

protects political speech incident to an initiative campaign,” but not

“the right to make law[] by initiative.”); Save Palisade Fruitlands v.

Todd, 279 F.3d 1204, 1211 (10th Cir. 2002) (“[T]he right to free speech

. . . [is] not implicated by the state’s creation of an initiative

procedure, but only by the state’s attempts to regulate speech

associated with an initiative procedure . . . .”); Skrzypczak v. Kauger,

92 F.3d 1050, 1053 (10th Cir. 1996) (initiative proponent’s desire to

place an initiative on the ballot not protected by the First

Amendment because removing the initiative from the ballot did “not

prevent[] [the proponent] from speaking on any subject”); Republican

Party of N.C. v. Martin, 980 F.2d 943, 960 (4th Cir. 1993) (“The First

Amendment guarantees the right to participate in the political

process. It does not guarantee political success.”).

¶34 In Safe to Learn, an initiative proponent raised a First

Amendment claim similar to the claim in this case. There, the

initiative proponent argued that the legislature’s limits on the right
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JUSTICE LEE, concurring in the judgment

11

to initiative “impose[d] severe restrictions upon rights of free speech

and political expression, and thus [were] subject to strict scrutiny

under federal free speech analysis.” 2004 UT 32, ¶ 53 (internal

quotation marks omitted). This court held that

the provisions of the initiative statute d[id] nothing to

restrict speech. Initiative proponents [were] free, and

even encouraged, to disseminate their message

throughout the state. Nothing in the initiative statute

serve[d] to limit the number of messengers available to

engage in this sort of political expression. While the

regulations may arguably [have made] it more difficult

to place an initiative on the ballot, nothing . . . suggest[s]

that there is a protected right to have a particular

initiative on the ballot.

Id. ¶ 57 (fifth and sixth alterations in original) (internal quotation

marks omitted). We affirm our ruling in Safe to Learn, holding that

core political expression, as protected by the First Amendment,

distinguishes political expression from political activity. See id.

¶¶ 56–57. Under the 2011 amendments, the initiative proponents

were free to print posters, hold rallies, demonstrate, discuss,

canvass, campaign, and raise awareness for an E-verify requirement

initiative before, during, and after the statutory 316-day period. First

Amendment jurisprudence in this case does not guarantee unlimited

participation in political activity, nor does it establish a right to

political success. Rather, it protects individuals from regulations that

directly discourage or prohibit political expression.

¶35 We therefore find no First Amendment violation in the

March 2011 amendments challenged by the initiative proponents.

CONCLUSION

¶36 We hold that the challenged amendments contained in

S.B. 165 do not violate the Utah Constitution’s guarantees of the

right of the people to initiate legislation or of the uniform operation

of the law. Further, the provisions do not violate the federal First

Amendment. Thus, we affirm the judgment of the district court.

____________

JUSTICE LEE, concurring in the judgment:

¶37 I concur in the court’s judgment upholding the

constitutionality of the ballot initiative amendments adopted in

Senate Bill 165. But I disagree with the standard set forth in the
COOK v. BELL

JUSTICE LEE, concurring in the judgment

12

majority opinion and write separately to articulate the standard that

I would apply.

¶38 The controlling constitutional provision at issue here is

unusual. It prescribes both a right to an initiative and a legislative

power to regulate the exercise of that right. Thus, under article VI

section 1 of the Utah Constitution, our citizens have a right to

“initiate any desired legislation,” but the legislature also possesses

the express authority to regulate the “numbers,” “conditions,”

“manner,” and “time” for placement of initiatives on the ballot.

UTAH CONST. art. VI, § 1(2)(b). We must honor both provisions. To

do so, in my view, we must (1) vigorously protect the individual

right to “initiate any desired legislation,” by upholding ballot access

for any initiatives plausibly within the legislative power as defined

in Carter v. Lehi City, 2012 UT 2, 269 P.3d 141; and also (2) defer to the

legislature’s exercise of its delegated authority to regulate as to

numbers, conditions, manner, and time.

¶39 To reconcile these two mandates, I would defer to the

legislature’s regulation of the initiative process except in

circumstances where such regulation forecloses any meaningful

possibility for the people to exercise the power reserved to them in

article VI, section 1. In other words, in my view we should yield

broad deference to the legislature to determine how best to regulate

the initiative process (as to numbers, conditions, manner, and time).

But that deference should yield to the right of the people to initiate

desired legislation in circumstances where the legislature’s

regulation forecloses any meaningful channels for the actual

vindication of the people’s reserved power.

¶40 This standard seems to me to follow from the twofold

structure of article VI, section 1. By generally deferring to the

legislature, we respect the constitution’s express reservation of

legislative power. And by withholding deference in cases where the

legislature’s regulation blocks the people’s access to meaningful

channels for exercising their reserved power, we also respect the

constitutional reservation of this right.

¶41 The standard applied by the majority seems to me to be

incompatible with the text and structure of article VI, section 1. In

light of the express reservation of the legislature’s prerogative of

regulating the initiative process, I cannot see how the courts can assert

the authority to (a) assess the extent of any “undue burden” imposed

by the legislature’s regulation of the initiative process, (b) evaluate

whether any legislative regulation is “reasonable” or “reasonably”

advances a legislative purpose, or (c) “weigh the extent to which the
Cite as: 2014 UT 46

JUSTICE LEE, concurring in the judgment

See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (stating that “the 1

Equal Protection Clause requires only that the classification

rationally further a legitimate state interest”); Planned Parenthood of

Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) (adopting an “undue

burden” standard for due process analysis under which “[o]nly

where state regulation imposes an undue burden . . . does the power

of the State reach into the heart of the liberty protected by the Due

Process Clause”); Mountain Fuel Supply Co. v. Salt Lake City Corp., 752

P.2d 884, 890 (Utah 1988) (under our state equal protection analysis,

a statute is constitutional if its classification is “a reasonable one and

bears a reasonable relationship to the achievement of a legitimate

legislative purpose”).

 Nor is there a basis for the court’s standard in the First 2

Amendment. Established free speech jurisprudence prescribes

heightened scrutiny only for laws regulating political speech by

initiative proponents; the First Amendment has no application to laws

regulating the initiative lawmaking process itself. “The distinction is

between laws that regulate or restrict the communicative conduct of

persons advocating a position in a referendum, which warrant strict

scrutiny, and laws that determine the process by which legislation

(continued...)

13

right of initiative is burdened against the importance of the

legislative purpose.” Supra ¶¶ 10, 12, 13—24 (applying and

extending the standard set forth in Utah Safe to Learn-Safe to Worship

Coal., Inc. v. State, 2004 UT 32, 94 P.3d 217). As a general rule, these

are questions for the legislature. Under a constitutional provision

recognizing legislative authority to regulate the terms and

conditions of the exercise of the initiative power, the courts are in no

position to second-guess the legislature’s judgments as to the weight

of competing considerations, or the reasonableness of the

legislature’s judgments.

¶42 Again, deference to the legislature should not be absolute.

But in light of the text and structure of the constitution, we cannot

properly assess the legislature’s judgments de novo. We should step

in only in the rare circumstance in which the legislature’s attempts

to regulate process effectively abrogate the reserved right of the

people to initiate desired legislation.

¶43 The majority’s standard—articulated in Safe to Learn and

extended today—appears to have been imported from state and

federal equal protection and due process precedent. But there are no 1

equal protection or due process issues before us today. This case 2
COOK v. BELL

JUSTICE LEE, concurring in the judgment

 (...continued) 2

is enacted, which do not.” Initiative & Referendum Inst. v. Walker, 450

F.3d 1082, 1099–100 (10th Cir. 2006); see also Save Palisade Fruitlands

v. Todd, 279 F.3d 1204, 1211 (10th Cir. 2002) (“[T]he right to free

speech and the right to vote are notimplicated by the state’s creation

of an initiative procedure, but only by the state’s attempts to

regulate speech associated with an initiative procedure . . . .”);

Biddulph v. Mortham, 89 F.3d 1491, 1497 (11th Cir. 1996) (“The cases

do say that heightenedFirst Amendment scrutiny should be applied

to certain state regulations of ballot initiatives, but they distinguish

between regulation of the circulation of petitions—which is ‘core

political speech’—and a state’s general initiative regulations . . . .”).

14

arises exclusively under the Initiative Clause of the Utah

Constitution. And that clause, as noted above, protects both the

people’s initiative power and the legislature’s authority to regulate

the initiative process.

¶44 I would apply this standard to our evaluation of this case.

And I would affirm on the ground that plaintiffs have failed to

present any evidence that the restrictions imposed by the legislature

in the exercise of its constitutional prerogative to regulate the

numbers, conditions, manner, or time for the ballot initiative process

effectively precluded them from getting their initiative on the ballot.

See supra ¶ 21 (noting that plaintiffs have not presented “any

evidence of the practical effect” of the legislation in question).